And, incidentally, while I’m loathe to do so, I agree with the people who are coming down on the side of “that’s the law right now”. I agree that it is the law right now. It shouldn’t be, but it is, and we have to live with that or change it, one way or another. But the status of sexual orientation as concerns levels of scrutiny isn’t relevant to an inaccurate (I assume unintentionally) representation of the continuum of orientation as an argument against the immutability of such orientation.
Agreed.
But it’s more than that. It’s not at all clear that one’s location on the continuum is set by ones genes, or that many people don’t change locations on the continuum during their lives. That’s the point about immutability that is a sticking point for rational basis. If it could be determined that “xyz” combination of genes = gay, then the application of a higher level of scrutiny would be easy to justify.
And would it under Due Process? Or are you just dealing with the EP argument.
Personally, as much as it pains me, I agree with Elvis that the Supreme Court would not uphold a law that only allows marriage between couples who procreate. Eisenstadt, Griswold, Roe, etc. all deal with the right of people to make their own procreative choices. A law that runs afoul of that would not pass the rational basis test. In addition, it’s pretty clear that procreation and marriage are not as inextricably linked as SSM opponents would want to believe. In many places, the inability or refusal to procreate is not grounds for divorce. In addition, many same sex partners become pregnant. Why is their decision to procreate not considered, if procreation is all important? Multiple marriage partners can indeed procreate, yet they’re not allowed.
And, as an aside, I’ll point out that the procreative argument, while apparently appealling to many, is, in my opinion, nothing but legal bluster meant to justify the inexcusable mistreatment and discrimination against homosexuals. I’d have at least a modicum of respect for those who are honest enough to oppose same sex marriage because they hate homosexuality and homosexuals rather than hide behind this “it’s all about procreation” bullshit.
All of the discussion above is focused on EP.
They almost certainly wouldn’t. But I highly doubt they would invalidate it on an Equal Protection argument.
And I think you agree with me. This is much more vulnerable to resolution as a due process violation than it is an equal protection violation.
Your evasions would make Bush proud.
A legal distinction between fertile and infertile (whether by biology or by choice) couples would certainly be interesting. If I remember correctly, a person’s status as born out of wedlock or not is subject to intermediate scrutiny, is it not? Seems to me that the logic would apply to fertility, but what do I know.
Certainly I’d agree with that. I just didn’t know we had confined the issue of constitutionality to just equal protection.
I only mention equal proection about fifty zillion times above. And I never mention due process until you ask about it.
How it escaped your attention until now is a mystery.
I apologize for thinking that the thread must only be discussed according to your terms. My bad.
Again I’m mystified. There’s no reason not to discuss other aspects of constitutional protection or prohibition of same-sex marriage. Discuss away. All I’m saying is the proposition I advanced, and the one I was explaining in minute detai and defending tooth and nail, was the Equal Protection argument. I carefully explained that when I started my discussion, and mentioned it repeatedly thereafter. That’s all I’m talking about. I’m not suggesting anyone else limit their conversation to that topic – I’m just limiting my own conversation to that topic.
For you and John Mace, I’m not arguing the rational basis test (at least in the way you seem to think), but rather two other points:
One, the fallicious argument -
Marriage should serve to promote procreation
Homosexual couples cannot have children
Therefore homosexual couples should not get married
This is the fallacy known as Denying the Antecedent so that even if there were a state interest in having children born in wedlock, this argument does not create a relationship between homosexual marriage and the state interest.
Two, is using marriage to promote procreation truly a state interest or a facade? This is why I raise the issue of sterile couples. If there is a movement to ensure that all married couples can procreate, why is there no discussion in any state legislature in preventing other couples that cannot reproduce from getting married. In fact, California has **eliminated ** a law that nullified a marriage if one spouse was sterile and did not informed the other. I know that a court can rule that a claimed state interest does not exist, but I don’t if a court can tell the state, “Due to the inconsistancy in implementing this “state interest”, we know you’re lying when you say couples who cannot procreate shouldn’t get married.”
The response you mention is not possible in Equal Protection analysis under the rational basis test, because state inconsistency in implementation is not a fatal flaw.
If intermediate scrutiny were being applied, then the court can examine how well the law actually implements the claimed goal.
As to your point about affirming the consequent… apply that same argument to drivers license age rules, and tell me what happens. Note: I’m absolutely not denying that the fallacy is present in the argument. I’m asking you to realize that it’s commonplace in legislation.
I rather liked Archibald Cox’s example of a valid state interest: “The state has not only the right but the duty to discriminate against blind people in the issuing of licenses to drive motor vehicles.”
Bricker, from your exchange with Hamlet above, I note that you see the courts as likely to reverse my hypothetical fertility law on due process grounds. But I fail to see where the reversible flaw would be procedural in nature. Hence that would be SDP, which I am aware gives you the galloping horrors. (And having read a little of the Four Horsemen and a few Gilded Era cases, I do understand why. Like fire, SDP is a useful servant and a dangerous master.) Would you elaborate on how you’d address the issue a bit?
You lawyers could make things a lot easier to understand if you renamed the “rational basis test” and called it “make up any ol’ excuse test” instead. 
But that would violate the First Canon of the Bar: “Whenever possible, obfuscate!” 
I’ve tried hard to make that point, believe me, I’ve tried. Maybe you can have better luck.
Thank goodness. I sort of backed away from this thread, thinking I was just dense and didn’t get it. The phrase “make up any ol’ excuse test” sounds about right. So then, assuming that gays are not a “suspect group”, or mentally/morally deficient, or have criminal tendencies, and straights who are infertile can get married (or can marry for money e.g.), then what would be a true (not a fake) rational basis (meaning based on a truly rational and valid reason) for denying gays equal standing? The reason many are not satisfied with civil unions is because they are all too aware of the way “separate but equal” has worked in the past. They invoke right to privacy because they believe their private life (who to live with etc) as being interfered with. Right to privacy was one of THE big issues in Lawrence vs Texas (?). Gay marriage is being described as unconstitutional because it is not specifically mentioned in the constitution. But many other things were not specifically mentioned either. Was a federal income tax part of what the Foundering Fathers wrote long ago? How about Prohibition? How about Homeland Security? The Tennessee Valley Authority? The FBI and CIA?
It isn’t about the “sanctity of marriage”. Some of the most vocal proponents of that have been divorced.
It isn’t about procreation. Many married people either can’t have children or don’t want children.
It isn’t about defending marriage. Straights are already making a mockery out of it.
It isn’t for the children. There are far too many horror stories about child abuse in so-called marriages.
So what is the real reason?
Religiosity, ignorance, prejudice and hypocrisy. Maybe some of the noisiest “pro marriage” people need to have their own dirty laundry dragged out in public. Divorcers, child beaters, wife beaters, philanderers and adulterers, abusive drunks, people who default on child support, and any closeted gays who help them. Maybe we need one muthah of an outing party.
I expect the courts would look at your hypo as violative of the test laid out in Palko v. Connecticut and/or Moore v. East Cleveland. The first case gave us the protection of “fundamental liberties” that are “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if [they] were sacrificed.” The second gave us the test that asks if the liberty interest in question was “'deeply rooted in this Nation’s history and tradition”. Both of these are, as you suggest, substantive due process analytical tools.
Why not go straight to Loving and Zablocki? Didn’t those hold marriage is a fundamental right?
Marriage, as in one man and one woman. I can’t imagine anyone giving serious thought to marriage meaning anything else back then. But even so, it was not a very intelligent thing to say. States could decline to recognize any and all types of marriages, and the feds would not be in a position to force them to, as they would with a real fundamental right (such as free speech). Is that not so?
In the context of that time, too, the idea of “living in sin” just wasn’t social acceptable. IIRC, in some states it was actually illegal. So, marriage was often the only option a couple had. I’m not sure that would have much legal merit, but it does help understand how people thought about marriage 30 or 40 years ago.
I was focusing on more the “forced” fertility component of Polycarp’s hypo.
I think Loving is inapposite. It resolved the issue by simple application of the Equal Protection Clause:
It then went on to say that the Due Process Clause was also violated. But note well WHY:
And before then, marriage was between one man and one woman of the same race. And before then marriage was between one man and one piece of property. And before then, marriage was between one landowner and one person of equal class. Marriage is, from the government’s point of view, a simple contractual relationship, a simple licensing law. Consistently changing the definition of marriage to exclude those you don’t like (race in loving, those with outstanding child support debts in Zablocki, and now same sex partners, undermines what marriage really is.
But in 1977, the Supreme court said:
and